gated, and a new one adopted, by the whole mass of people in a state, acting through representatives not chosen by the "people" in the political sense of the term, but by the general body of the populace, the movement would be extra-legal. Limits of Power. What is the limit to the power of the people of a state in revising and amending their constitution? Supposing the amendment to be proposed and adopted in a lawful manner, there are no limitations upon the scope or character of the amendments except such as are to be found in the constitution of the United States. But these are important. The people of a state could not, by means of such amendment, establish any form of government that was not in accordance with the theory and system of a republic, for the continuance of republican government in all the states is guarantied by the federal constitution. They could not deny allegiance to the United States, nor deny that the federal constitution and laws and treaties are the supreme law of the land. Nor could they exempt their legislative, executive, and judicial officers from taking an oath or affirmation to support the constitution of the United States. Neither could they divide the state into two or more states, thus bringing a new state or states into the Union, or unite with another state, to form one new state, without the consent of congress. Nor could they adopt any provision which would impair the obligation of contracts or pass any bill of attainder or ex post facto law, or grant titles of nobility. Nor could they deny full faith and credit to the public acts, records, and judicial proceedings of the other states; nor so regulate the rights of their own citizens as to deny their privileges and immunities to citizens of the other states, or abridge the privileges and immunities of citizens of the United States. Neither could they, by enactments in the form of a constitution or of amendments thereto, deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws. Nor could they thus establish or permit slavery, or deny or abridge the right of citizens of the United States to vote, on account of race, color, or previous condition of servitude. Nor could the state thus assume any of the powers exclusively vested in congress. But so far as regards the functions and powers of government, and their distribution and separation, the institutions of the state, the regulation of personal, social, and political rights, even those heretofore deemed most fundamental and necessary to the maintenance of freedom, in so far as the same are not created or secured by the federal constitution, the power of the people, in making or amending their constitution, is plenary and supreme.15 Governor's Approral of Amendment. The amendment itself need not be submitted to the governor for his approval or veto. But the proposition, or resolution, of the legislature to refer the amendment to the popular vote may take such a shape as to fall within the designation of ordinary legisla tion, and so require the assent of the executive. The practice in the different states, in this particular, is not uniform.16 Powers of Constitutional Convention. If the convention is called for the purpose of amending the constition in a specified part, the delegates have no power to act upon and propose amendments in other parts of the constitution.17 The convention cannot take from the people their sovereign right to ratify or reject the constitution or ordinance framed by it, and cannot infuse life and vigor into its work before ratification by the people. 18 But the people, in conferring authority upon the convention, may intrust it with power not merely to prepare a draft of a new constitution, but to "enact" it, and when such authority is given, the new instrument need not be submitted to the popular ratification.19 A constitutional amendment does not become operative upon the casting in its favor of the necessary majority of votes, but 15 In re Gibson, 21 N. Y. 9. 18 See In re Senate File 31, 25 Neb. 864, 41 N. W. 981; State v. Secretary of State, 43 La. Ann. 590, 9 South. 776. 17 Opinion of the Justices, 6 Cush. (Mass.) 573. And when a convention is called to frame a constitution, which is to be submitted to a popular vote for adoption, it cannot pass ordinances, and give them validity, without submitting them to the people for ratification as a part of the constitution. Quinlan v. Railway Co. (Tex. Sup.) 34 S. W. 738. 18 Woods' Appeal, 75 Pa. St. 59; State v. Mayor, etc., of City of New Orleans, 29 La. Ann. 863. 19 Sproule v. Fredericks, 69 Miss. 898, 11 South. 472. BL.CONST.L.-4 only after the due promulgation of the result.20 A clause in the bill of rights, in a state constitution, may be amended in the same manner as any other part of the constitution.21 Effect of Amendment. An amendment to a constitution is not to be considered as if it had been in the original instrument, but rather as analogous to a codicil or a second deed, altering or rescinding the first, which is referred to only to see how far the first must yield to give full effect to the last. The legal fiction regarding an amendment to a pleading as if inserted in the first instance, does not apply.22 20 Sewell v. State, 15 Tex. App. 56; State v. Mayor of Morgan City, 32 La. Ann. 81; People v. Norton, 59 Barb. 169. 21 State v. Cox, 8 Ark. 436. 22 University v. McIver, 72 N. C. 76, per Pearson, C. J. OFFICE AND DUTY OF THE JUDICIARY. 30. The judicial department of the government is the final and authoritative interpreter of the constitution. There is a sense in which every person, even a private individual, must judge of the meaning and effect of the constitution, in order to govern his own actions and his dealings with other men. And the executive and legislative departments of government are clearly under the necessity of making similar determinations, at least in advance of authoritative expositions by the courts. But as the constitution is a law, and questions concerning its scope and interpretation, and of the conformity of public and private acts to its behests, are questions of law, the ultimate determination of such questions must belong to the department which is charged with the function. of ascertaining and applying the law. And as the courts have the power to enforce their judgments, their determination of such ques tions is final. And as their decisions are entitled to respect and obedience as precedents, their expositions of the constitution are authoritative. ADJUDGING UNCONSTITUTIONALITY. 31. It is the right and duty of the courts to examine the constitutional validity of every statute brought fairly before them as applicable to a pending controversy; and if they find such statute to be in contravention of the constitution, they may and must pronounce it a nullity and no law.1 It is the business of the judicial department of government to interpret and apply the law to cases brought before them. In so doing, they must determine what is the law applicable to a particular case. A statute which, if valid, will govern the case, is presumptively the law for its decision. But a statute is the expressed will of the legislature, while the constitution is the expressed will of the people. The latter is paramount. If the statute conflicts with it, it is invalid; it is no law. Now when this question of unconstitutional legislative action is raised, in such a manner as to become necessary to the determination of the pending cause, the court must decide it; and if it shall find that the statute is in violation of the constitution, and therefore no law, it must so declare, and decide the case accordingly. This is the whole rationale of the power of the courts to adjudge statutes invalid. It is not a veto power. It is not a supervisory power over legislation. It is simply the power to ascertain and decide what is the law for the determination of the cause which happens to be before the court.2 An American Institution. This power of the judiciary to judge of the constitutional validity of acts of legislation is an invention of the American people and an institution peculiar to our country. It is not one of the political ideas borrowed from the British constitution. No such power belongs to the English judges. It is true there are some cases in their reports, prior to the revolution, in which the judges would appear 1 Vanhorne's Lessee v. Dorrance, 2 Dall. 304. 2 Griffin's Ex'r v. Cunningham, 20 Grat. (Va.) 31. |